Defendant's motion is set for hearing on June 2, 2011. On March 15, 2011, after Defendant filed 19 its motion, the Federal Circuit issued a decision clarifying the pleading standard applicable to false 20 marking claims under 35 U.S.C. § 292. In re BP Lubricants USA Inc., --- F.3d ----, 2011 WL 21 "Rule 9(b)'s particularity requirement applies to false marking claims and . . . a complaint alleging 23 false marking is insufficient when it only asserts conclusory allegations that a defendant is a 24 'sophisticated company' and 'knew or should have known' that the patent expired." Id. at *1. In 25 his opposition to Defendant's motion to dismiss, Plaintiff appears to concede that the FAC is 26 deficient under this standard. See Opp'n to Mot. to Dismiss at 2, ECF No. 74. Therefore, instead 27 28

In light of Plaintiff's apparent concession that the FAC is deficient under the Federal Circuit's recent decision in BP Lubricants and Plaintiff's motion for leave to amend, the Court 5 hereby deems Plaintiff's FAC dismissed and finds that Defendant's motion to dismiss the FAC is 6 moot. Accordingly, the Court vacates the hearing on Defendant's motion previously scheduled for 7

June 2, 2011. Plaintiff's motion for leave to amend shall be heard on June 16, 2011, at 1:30 p.m. 8

If the motion can be resolved without a hearing, the Court will notify the parties and vacate the 9 motion hearing. 10

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